Dr Jason Beckett is a Lecturer in Law at the University of Leicester (UK). His publications include The End of Customary Internaitonal Law: A Purposive Analyis of Structural Indeterminacy (2008) as well as a couple of articles in the European Journal of International Law (in 2001 (here) and 2005) dealing  with international law theory.

It is a privilege, as well as a pleasure, to be given the opportunity to comment (once more) on the works of Martti Koskenniemi. To be asked to do so in tandem with Iain Scobbie brings a symmetry to that pleasure. Both are scholars I have long admired, and men I am honoured to consider friends. But the symmetry runs deeper than this, as whilst Iain wrote the best review essay of the first edition of Koskenniemi’s book: From Apology to Utopia (FATU), it is my claim to fame to have written (by far I suspect) the longest review of the second (see here). Martti’s thought has evolved in those twenty years, as has my response to it. Yet his has retained a consistency which mine has not. Iain’s, I believe, comes somewhere in between. I suspect he remains opposed to the central strands of Koskenniemi’s thinking, yet he has learned from them, softening his stance in some regards. But what constitutes Koskenniemi’s thought? What, if anything, is its central tenet?

Indeterminacy, contingency, false necessity, critique, and perhaps pessimism (or, from another perspective, an unjustifiable utopian optimism) seem obvious candidates; but I would reject them all, not outright, but as epiphenomenal. To my mind, the central thrust of Martti’s work is a demand for responsibility, a demand that we recognise and accept our implications in both the project of Public International Law (PIL), and its “effects in the world of outcomes”; (p. 12 – unless otherwise indicated, all page references are Koskenniemi’s latest EJIL article) a demand that we take responsibility for our choices.

But this demand is coupled to a resigned acceptance of the historical irony of (modern?) international law. In Koskenniemi’s narrative, PIL is (always) a normative project. Its best proponents, those who pursued their progressive politics through PIL. “International law was born from a move to defend a liberal-internationalist project in a time of danger and opportunity.” (p. 18) But international law was also a professional technique; indeed it adopted a technique of technicalisation and professionalisation precisely as the best way to pursue its (then) progressive mission.

The irony, of course, is that the means became an end. PIL bought into its own rhetoric of technical expertise, and the pursuit of politics became the effacement of politics. From a political project, PIL grew into a demand for the anti-political, the technical, the correct, the necessary. In this evolution, political responsibility was lost, replaced by technical expertise and false necessity. It was against this loss and this delusion that Koskenniemi’s own project – nothing less than the rebirth of a (cosmopolitan?) PIL – was initiated. That project has not changed, but in some ways, its target ‘mainstream PIL’ has.

PIL it is a Changin’:

The Politics of International Law sought to demonstrate the linguistic and structural indeterminacy of a PIL perceived – and perceiving itself – as unitary, an attempt (albeit doomed) to “make the scales fall from the eyes of the professionals”. (p. 8 ) Perhaps with a wider, though never to my knowledge explicitly articulated, ambition to unmask PIL publically; to demonstrate that the Emperor wore no clothes. An attempt to fracture the legitimatory ideology of PIL. Certainly, this was the effect it would have on me, but then, I belonged always to that most naïve class of international lawyer, the professional academic. And I craved determinacy, and systemic coherence, as others now crave constitutionalisation, and systemic coherence.

And that was the radical change, the perceptual shift, PIL fragmented:

This is why much about the search for political direction today takes the form of jurisdictional conflict, struggle between competing expert vocabularies, each equipped with a specific bias. (p. 9)

And yet, as Martti has said – though never, to my knowledge, actually written – “coherence is the enemy”, and that enemy has not changed. Surface changes do not matter, the project remains implacably opposed to expertise as an end.

Where political contestation used to take the form of “discretion” it now takes the form of jurisdictional dispute. Where the false resolution once took the form of systemic coherence (See Scobbie,”Towards the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism”, (1990) BYIL 339) – Dworkinian hermeneutics – it now takes the form of constitutionalisation, or coherence: Dworkinian hermeneutics. (p. 12) But the reality remains political contestation, and the proposed solutions continue to manifest denial:

There is nothing that would be new or out of order in this process – apart from the fact that the struggles are described in the neutral language of expertise. (p. 12 emphasis added)

There is no new thing under the sun; neither problem nor solution. The neutrality of technicalisation (whether as hermeneutic determinacy, constitutionalisation, or the pursuit of coherence between functionally differentiated regimes) forms a thin, dangerous, and artificial, veneer over a reality of conflict, of war. There is no correct answer, no neutral position, (p. 8, or see Beckett J. “Rebel Without a Cause”) and it is because of this, that the presentation of a position as neutral is a political act, an intervention in a conflict; with an inbuilt denial of responsibility.

The pursuit of coherence becomes in itself a hegemony in denial:

Topics such as ‘trade and environment’, ‘security and human rights’ … give name to some such conflicts. (p. 10)

But it should not need spelt out that this is a dangerous and deceptive name. The conjunctive “and” resonates with peace, compromise – a non-conflictual term designating, or rather disguising, conflict. The outcome, of course, is that the war is denied, the (necessarily) unjust peace treaty is presented as the new measure of justice: vouchsafed by its coherence or technical correctness. The losers are silenced, and perhaps worse. Responsibility is denied, for no choice is acknowledged to have been taken. “That … choice is not usually seen as … a choice by the vocabularies, but instead as something natural”. (p. 11)

Foregrounding and Backgrounding:

“Political intervention is today often a politics of redefinition”. (p. 11) Koskenniemi assumes, I suspect correctly, that any policy – indeed any set of facts – may be described in any vocabulary, because fragmented discourses are “characterized … by solipsism and imperialism”. (pp. 12-13) Every system sees itself in all of the world, and all of the world in itself. But each constructs that world differently, and no definition is “any ‘truer’ than the others.” (p. 11) Each system privileges certain aspects of reality, and de-privileges others.

The answers that a system gives depend on which features are foregrounded, and which backgrounded; and, of course, on how the foregrounded features are evaluated. Yet each system remains, internally, formally open. Nonetheless, choice of forum usually determines the outcome.

Structural Bias and Topicological Organisation:

In his review of FATU Scobbie suggested that, although systemic coherence (in PIL) was an impossible dream, a coherent “segmental expression of policy … underlies discrete areas of the legal system.” (“Radical Scepticism” p. 349) Far more recently, he has argued that the relationship between IHL and Human Rights is structured on a “topical” not an “axiological” basis, which appears to amount to the same point.

Koskenniemi, in a sense, agrees with this: there is a determinacy which characterises discrete areas of (what was once) PIL. The dispute arises over what causes this determinacy, (segmental) doctrinal coherence, or “structural bias”? Drawing on Susan Marks’ analysis of “false contingency”, Koskenniemi notes the erroneous nature of the argument “that because the argumentative structures are open anything goes in fact.” (p. 9) Curiously, this argument need not be resolved, as intriguingly, Koskenniemi’s law/fact dichotomy leads, apparently, to that very segmental coherence upon which Scobbie relies.

Matters though are rarely that simple.

Priesthood vs. Politics:

Priesthood and politics – according I think first to Foucault, then David Kennedy, and now Koskenniemi – are the two modes in which to engage the law, or legal practice. The former concentrates on doctrinal purity, and the avoidance of compromise, but at the constant “risks of marginalization, irrelevance, or even the hubris of martyrdom”. (p. 14) It is the stance of the zealot: the human rights advocate, the security or environmental expert. It takes not only the coherence, but also the determinacy and the value of its particular discourse for granted. Once something is identified as, e.g., a human rights violation, and the human rights solution proposed, it has been blessed, and solved, it will simply vanish of its own (or the systemic deity’s) accord.

The latter mode does not take segmental coherence, let alone utility, for granted:

To join an institution or to choose a professional language is no more to close oneself in an iron cage than to be the national of Finland, France, or Fiji [is]. (p. 13 Actually, I am not convinced by this, and will return to the question of the Iron Cage of the juridical imagination.)

The apparent determinacy of institutional preference remains contingent, and contingent not on legal determinacy, but structural bias. Moreover, structural bias can change, and is not itself monolithic at any given moment. Instead, it contains, potentially unstable, even hegemonic, exceptions within itself. Law as politics “requires adopting a more nuanced attitude to the jurisdictional conflicts and the attendant choices about distributionary effects.” (p. 13, emphasis added) It involves choosing strategically between regimes, depending on their anticipated emancipatory effects in this instance. And that, in effect, involves treating jurisdictional conflict – politics generally – as Foucault recommended, that is, as a War! (Society Must Be Defended)

Politics and Recuperation:

Elsewhere, Koskenniemi has suggested that where we choose to intervene may be more important than how we choose to do so. If we abandon the priesthood (and its steadily shrinking congregation) then we must seek to influence the actual centres of power; whatever these may be. Perhaps then, abandoning the UN and even the ICRC as utopian, we should focus on the legal offices of TNCs, the legal core of the various armed forces, or perhaps the WTO. We should seek to “mainstream”.

Mainstreaming is a potentially rewarding political move, but influence comes at a price: we must make ourselves intelligible, we must begin to adopt other dialects, even other languages. But we must also try to make our (preferred) language heard in the dominant discourse. This returns us, inter alia, to the “trade and …” debates (or conflicts). It is not enough to have trade lawyers adopt a vocabulary of human rights, development, or environmentalism. We must also engineer progressive policy changes; or at least accept responsibility for failing to do so:

If the institutional outcomes are not changed, then the change of vocabulary will only end up stunting the capacity for transformation that was originally sought. (p. 13)

Actually, as I have argued elsewhere, (“Fragmentation, Openness, Hegemony: Adjudication and the WTO” [forthcoming]) things may be even worse. The adoption of, e.g., environmental terms into trade law, may also (depending on how those terms are transformed) have a negative effect on their meaning within environmental law. The WTO’s structural superiority (its possession of compulsory jurisdiction) adding weight to its construction of environmental norms, even within environmental law.

A Formal Iron Cage?

Surfaces and vocabularies change, but enmities do not necessarily change with them. Koskenniemi’s proximate enemy has altered, from legal determinism to technicalisation and managerialism; but his ultimate enemy appears the same:

The search for the right interpretation of a concept and the optimal derivation of a policy from some notion of ‘interest’ appear equally fixated to the search for a right answer and the belief that it is accessible by technical reasoning. (p. 16)

A belief, we might add, with an entailed corollary: the denial of responsibility.

At this level, it is technicalisation itself (expertise as such) which forms the true enemy, and Koskenniemi joins forces, perhaps unpalatably, with Carl Schmitt, but also with Isaiah Berlin and Michel Foucault. Their aim being to re-centre contingency and decision-making: to demand that we take responsibility. Rejecting the bland, technicalising, discourse of the correct answer, the ideal justice which causes no wrong and includes all. Rejecting the scientifically optimal position, or the objectively correct interpretation.

But this naïve belief, in progress, in justice, in universality, in the technically/objectively correct answer is the Iron Cage of juridical modernity; the poisoned chalice bequeathed us by the disciplines founders, Koskenniemi’s heroic international lawyers of progress and faith. It is, tragically, that irony which will preserve the value and the relevance of Martti’s work, for at least the next 20 years; and probably many decades after that.